In this chapter, the editor provides a summary and assessment of the different perspectives offered by contributors in previous chapters.
The First 50 Years and Beyond
Edited by Sam Ricketson
The High Court of Australia has rejected a constitutional challenge to the validity of recent Australian legislation requiring plain packaging for tobacco products. Leaving aside the public health justifications for such measures, there can be no doubt that the legislation imposes sweeping restrictions on what tobacco IP owners can do with their rights in relation to the retailing of their products, including stringent positive requirements as to additional material that must be included on packaging by way of graphic health warnings and other material.
The constitutional challenge arose under s 51(xxxi) of the Commonwealth Constitution which provides that there can be no acquisition of ‘property’ by the Commonwealth unless this has been done on ‘just terms’. In the legislation in suit there was no provision for compensation to the tobacco companies with respect to their IPRs, notably registered trade marks: hence it was argued that the legislation was invalid as not complying with this requirement.
While all members of the court agreed that each of the IPRs affected was ‘property’ for the purposes of s 51(xxxi), by a majority of six to one they held that, even if the plain packaging legislation constituted a ‘taking’ or limitation of the tobacco companies' property, it did not amount to an ‘acquisition’ of property as required by s 51(xxxi). ‘Acquisition’ of property in this context meant that the Commonwealth or another had, as a consequence of the impugned legislation, acquired ‘an interest in property, however slight or insubstantial it may be’. In other words, there must be a transfer of some proprietary interest to the acquirer (the Commonwealth), and this requirement was not satisfied by the simple fact that the Commonwealth's actions had had the effect of limiting or even extinguishing the property of another – s 51(xxxi) was not a guarantee of protection of the general commercial interests of traders. In the present case, therefore, the Commonwealth Government had not ‘acquired’ any of the property rights of the plaintiffs. The tobacco companies still remained registered owners of their trade marks, and designs, and the Commonwealth had in no way assumed any of these rights for its own use. The various positive obligations now imposed on tobacco companies to display enhanced warning notices and other such material also did not constitute an acquisition of the companies' property rights, with members of the court drawing analogies here with legislative restrictions placed on manufacturers and retailers of other kinds of products or planning and other restrictions placed on land use.
The challenge therefore failed.
Gillian Davies and Sam Ricketson
In this introductory chapter, Davies and Ricketson trace the origins of WIPO in the international bureaux established under the Paris and Berne Conventions and overseen by the Swiss Government. They highlight the steps by which discussions occurred on the establishment of a more permanent and free-standing intergovernmental organization to deal with intellectual property. The main proponent of this idea in the 1950s was Jacques Secretan, the Director of the United International Bureaux (BIRPI). This work was then carried to completion under the leadership of Georg Bodenhausen, Secretan’s successor, and by Arpad Bogsch, his deputy. The new organization was formally constituted under its own convention at the Stockholm Revision Conference in 1967.
Sam Ricketson and Tanya Aplin
The authors provide a chronological account of WIPO’s role over the past 50 years in developing new international norms in relation to copyright and related rights. Initially, the situation looked dire, as a gulf between developed and developing countries over the Stockholm Protocol of 1967 emerged, but this was resolved by a more modest Appendix adopted in Paris in 1971. Although still in its infancy, WIPO and its senior officials played a significant role in bringing about this resolution, and continued this work through the 1970s and 1908s in the period of ‘guided development’ in which widespread consultations on copyright issues were conducted. This led to the Berne Protocol process in the early 1990s, a somewhat unstructured endeavour which was possibly a reaction to the developments occurring outside WIPO in the area of trade related IPRs. Post-TRIPS, however, WIPO’s work crystallized in a more targeted programme addressing internet issues and leading, within a comparatively short time, to the negotiation and completion of the two Internet Treaties discussed by Dr Ficsor. Following the Internet Treaties, WIPO’s achievements have been more uneven. Projects such as a broadcasters treaty remain unfinished, while a considerable period elapsed before protection of audiovisual performers was achieved in Beijing in 2012. A notable success, however, has been the Marrakesh Treaty of 2013, which responded creatively to the needs of readers with a visual disability. Other projects on limitations and exceptions continue to receive extended discussion in the SCCR.
Gillian Davies and Sam Ricketson
Davies and Ricketson provide an overview of the achievements and failures of WIPO during the first 50 years of its existence, dividing this up in temporal terms by reference to the tenures of the four Directors General of WIPO to date: Bodenhausen, Bogsch, Idris and Gurry. While there have been notable successes, particularly in the procedural area (as exemplified by the ‘rivers of gold’ now flowing from the PCT), there have been some significant failures, such as the futile endeavours to revise the Paris Convention and to adopt a new convention on integrated circuits. In the same way, there have been significant achievements in the development of ‘soft law’ proposals, but the task of developing new international norms in the form of treaties has languished. On the other hand, WIPO has delivered substantial educational and technical assistance programmes, as well as pioneering alternative dispute resolution processes in the area of domain names, and is exploring new forms of public-private partnerships. Tensions between developed and developing countries remain, but WIPO has sought to respond to these with some sensitivity, and has shown a readiness to embrace the possibilities offered by new technologies